Court to rule on suing corporations and PLO (UPDATED)

Posted Mon, October 17th, 2011 10:18 am by Lyle Denniston

FURTHER UPDATE: 4:38 p.m.

The Supreme Court, stepping into a spreading international dispute over human rights violations, agreed on Monday to decide whether corporations or political organizations are immune to lawsuits in U.S. courts for overseas acts of torture, murder or other global law violations, under two American laws. The Justices accepted one case dealing with potential corporate liability under the Alien Tort Statute, which dates to 1789, and a second case dealing with organizations’ legal risk under a 1991 law, the Torture Victim Protection Act. The cases will be argued back-to-back, and probably will be scheduled for the February sitting.

The new ATS case, Kiobel, et al., v. Royal Dutch Petroleum (docket 10-1491), involves a lawsuit by 12 Nigerian nationals claiming human rights violations by three oil companies, allegedly for enlisting the Nigerian government to use its armed forces to suppress resistance to oil exploration in the Ogoni Region of the Niger Delta between 1992 and 1995. The new torture act case, Mohamad v. Rajoub(11-88), involves claims by the family of a U.S. citizen, Azzam Rahim, who allegedly died from injuries suffered during torture in 1995 by officers of the Palestinian Authority and the Palestine Liberation Organization. There is no torture act claim in the Kiobel case.

In both cases, the issue is whether the human rights laws at issue apply to someone other than a natural person — corporations in Kiobel, political or other organizations in Mohamad. In both cases, federal appeals courts found that non-natural persons are immune from liability, differing with other appeals courts’ rulings. The Kiobel decision came from the Second Circuit Court, the Mohamad ruling from the D.C. Circuit Court.

The Alien Tort Statute does not itself create any new legal claim, but does open U.S. courts to claims of violations of international law or a U.S. treaty, applying to “any civil action.” The torture act, by contrast, specifically permits lawsuits for acts of torture or “extrajudicial killing” — that is, wrongful killing as opposed to the carrying out of a court-ordered execution for crime. The torture law applies to any “individual” acting under the authority of a foreign government. While the torture act is considered to be an attempt by Congress to strengthen the ATS law, the Supreme Court has said that they are separate statutes. The 1991 law was passed in part to implement a global treaty, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The oil companies sued in the Kiobel case had attempted to get their own case before the Supreme Court (Shell Petroleum, et al., v. Kiobel, et al., docket 11-63), but the other side had waived a response and that led the Court to routinely deny review without comment on October 3. In that petition, the companies — aware that lower courts had ruled that the torture act did not allow lawsuits against corporations — had urged the Justices to rule that the torture act displaced any claims under the Alien Tort Statute. They also had claimed that the Senate’s ratification in 1990 of the U.N. Convention Against Torture was a further indication that ATS claims had been displaced. Presumably, the companies may seek to advance those same arguments in their merits brief in response to the Kiobel appeal.

The Alien Tort Statute had hardly been used for nearly two centuries, after its original enactment in 1789. The first federal appeals court to uphold a claim under the law was a Second Circuit ruling in 1980, in the case of Filartiga v. Pena-Irala. The Supreme Court would later describe that decision as “the birth of the modern line” of litigation based on the old law. That case had involved the alleged torture of a Paraguayan, and was a lawsuit filed by that individual’s father.

So far, the most important Supreme Court decision to interpret ATS was its 2004 decision in Sosa v. Alvarez-Machain, barring a lawsuit under the Act by a Mexican against Mexican nationals supposedly recruited by the U.S. Drug Enforcement Administration to abduct him and transport him to the U.S. for a criminal trial. The Court declared that the ATS merely confirmed U.S. courts’ authority to hear such cases, and did not create an explicit cause of action. The claims that could be heard by District Courts, it added, were those that involved conduct that would violate norms accepted by the civilized world. The Court, though, told District judges to use caution in recognizing new claims under ATS.

Since then, the number of ATS lawsuits has risen significantly, and the Supreme Court, until Monday, had remained largely on the sidelines. It now will be plunging back into the middle of the ongoing controversy.

Upcoming Oral Arguments

3/31Kimble v. Marvel Enterprises, Inc. Whether the Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se”.

4/20Johnson v. United States Whether possession of a short-barreled shotgun is a violent felony, leading to a longer prison term as a career criminal.

4/21McFadden v. United States A federal prosecutor’s duty to prove that a suspect knew that a substance was an illegal substitute for a banned drug.

4/22Horne v. Department of Agriculture The federal government’s duty to pay raisin growers for an order requiring removal of part of a year’s crop from the market to stabilize prices.

On Monday afternoon Justices Anthony Kennedy and Stephen Breyer testified before the House Appropriations Committee. The purpose of the hearing was to discuss the Court’s budget for the next fiscal year and the federal judiciary, but the legislators also took full advantage of the occasion to touch on other topics as well.